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Determine Whether a Social Media Post Is Protected by the NLRA
Key Points
An employee's social media posts (e.g., on Facebook or Twitter) may constitute protected activity under the National Labor Relations Act (NLRA) if they address a term or aspect of employment and are read by fellow co-workers, even though the posts also may be seen by non-coworker "friends."
If an employer permits employees to use social media sites on employer-provided equipment, the employer may not be able to prohibit employees from using such sites to send pro-union messages.
An employer may argue against the protected aspect of a social media post by showing that it was malicious, reckless, false or an individual complaint, rather than a complaint on behalf of fellow coworkers. Because each social media post is unique, an employer may need to consult legal counsel regarding appropriate responses.
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